University of Toledo Law Review
The American Bar Association’s (“ABA”) practice of requiring students to purchase the Model Rules of Professional Conduct is exploitative and unethical. The ABA uses its role in training lawyers to create a situation which all but requires law students and bar applicants to purchase the organization’s own Model Rules. The fact that the Model Rules constitute a substantial revenue stream for the ABA is due less to lawyers’ desire to brush up on Model Rules of Professional Conduct, which are not laws, than to the ABA's direct role in approving law schools and its indirect role in licensing lawyers.
Law schools must maintain ABA-approved status to remain in business. The ABA Standards for Approval of Law Schools require that students take a course in legal ethics. Not only must law students take a course in legal ethics, but those courses must also include instruction in the ABA's ethics rules. Furthermore, nearly all jurisdictions require bar applicants pass the Multistate Professional Responsibility Examination (“MPRE”) to become a licensed lawyer. The MPRE is based substantially on the Model Rules. The ABA has thus used its role in training lawyers to create a situation that essentially requires law students and bar applicants to purchase the organization’s own Model Rules.
The ABA’s decision to make its ethics rules a commodity, spanning twenty years, together with the National Conference Bar Examiners (“NCBE”) desire to nationalize testing by using the Model Rules, cultivates the dangerous view that testing checks for those inclined to unethical behavior. In light of the ABA’s successful efforts to wring even more revenue from financially-burdened law students, the creation of an essay examination in ethics sounds less like a call to renewed professionalism than a pitch for another product for the NCBE to sell to state bar examiners. It is a bureaucratic culture’s last-gasp effort, one that should be rejected firmly and finally.
Michael S. Ariens, The Ethics of Copyrighting Ethics Rules, 36 U. Toledo L. Rev. 235 (2005).